Thompson and Comcare

[2004] AATA 756

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 756

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V04/559

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MICHAEL THOMPSON

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date20 July 2004

PlaceMelbourne

Decision The time to lodge these proceedings, being an application to review a reviewable decision of Comcare be extended to 10 May 2004.

(Sgd)  J Handley

Senior Member

PRACTICE AND PROCEDURE – delay of three years in lodging application to review a reviewable decision – inactivity by Solicitors – applicant not aware decisions had been made – absence of prejudice – explanation for delay – fair and equitable to extend time

Comcare v A’Hearn (1999) 18 AAR 366

Comcare v Willems (1996) 70 FCR 244

Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344

Jess v Scott (1986) 70 ALR 185

Marrick v Comcare (1993) 40 FCR 244

Re Pulitano and Telstra Corporation Limited (AAT 8874, 27 July 1993)

Williams v FS Evans and Sons (1998) 52 SASR 237

Safety, Rehabilitation and Compensation Act 1988 (Cth) s65

Administrative Appeals Tribunal Act 1975 (Cth) s29(2) and s29(7)

REASONS FOR DECISION

Mr John Handley, Senior Member           

1.      The applicant applies to extend time to lodge these proceedings.  The application was opposed by the respondent.  The hearing of the application was heard on 9 July 2004.  Mr Fehring and Mr Ferwerda both of Counsel appeared on behalf of the applicant and respondent respectively.  A number of documents were received into evidence including Affidavit material from the applicant and his current solicitor.  Those documents will be referred to in these reasons.

2. The primary determination issued by the respondent was made on 16 August 1999. The decision by way of reconsideration was made by the respondent on 20 February 2001. The proceedings sought to be lodged by the applicant were received by the Registrar of this Tribunal on 10 May 2004. Section 65 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) modifies the provisions of s29(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) by prescribing that the period of time between receipt of the decision under review and the lodgement of an application for review is confined to a period of 60 days. This application is made pursuant to s29(7) of the AAT Act whereby the applicant applies to extend the time to lodge these proceedings.

the evidence

3.      Mr Thompson adopted an Affidavit sworn by him on 7 July 2004.  The Affidavit was received into evidence.  A number of documents were annexed to it (refer later).

4.      The Affidavit records that he joined the Army Reserves on 28 June 1994 on his 17^th birthday.  On 2 July 1994 he commenced recruit training and on 4 July 1994 he injured his right ankle.  He completed an accident report on 6 July 1994.  At all relevant times Mr Thompson was then living in Townsville in Queensland.

5.      Eventually he was discharged from the Army…